MEF Research and Writing

Case Against 'Innocence of Muslims' Filmmaker Raises Eyebrows

Nakoula Basseley Nakoula, (or Mark Basseley Youssef) the American Coptic filmmaker partly responsible for the film clip that President Barack Obama, Secretary of State Hillary Clinton, and U.N. Ambassador Susan Rice initially and incorrectly blamed for inciting the terrorist attack on the U.S. consulate in Benghazi that killed the American Ambassador and three other Americans, was recently sentenced to a one year prison term for violating his probation.

On September 27, in the midst of the tumult in the Muslim world, Nakoula was arrested in the middle of the night from his home in the Los Angeles area for violating his probation for a 2010 bank-fraud conviction. The media was conveniently present to record his "perp walk" to the Sheriff's office, which was broadcast worldwide. Nakoula spent slightly over a month in solitary confinement, being held without bond at the Los Angeles Metropolitan Detention Center. On November 7, the day after the U.S. elections, his trial was finally held. He admitted to lying to his probation officer and three allegations of using false identities in exchange for his prosecutors dropping four allegations of using false identities. Nakoula was sentenced to one year in prison, instead of the two years recommended by his probation officers. The judge specifically rejected the idea of home confinement.

Now, Mr. Nakoula is certainly no prize as a human being. He has an extensive, but non-violent, criminal background. In 1997, he pled guilty to intent to manufacture methamphetamine and was sentenced to one year in county jail and three years of probation (but not parole). In 2002, Mr. Nakoula violated his drug probation and was re-sentenced to another year in jail. In 2010, he pled guilty to a bank fraud crime, and was sentenced to twenty-one months in prison to be followed by another five years of probation. Nakoula was guilty to check kiting, as he had opened bank accounts using fake names and stolen Social Security numbers and deposited checks from those accounts to later withdraw money from.

In mid-September, after Nakoula was revealed as someone involved in the film, his probation officials in the Central District of California charged him with eight counts of violations, and recommended a twenty four month term to Magistrate Judge Suzanne Segal. Judge Segal ruled that since Nakoula had failed to prove he wasn't a flight risk, he would have to stay in prison till his probation revocation hearing, justifying this decision because Nakoula "engaged in a likely pattern of deception both to his probation officers and the court" and "(t)he court has a lack of trust in this defendant at this time."

But, with all that admitted, the questions remain: Would Nakoula be back in prison had he not offended the sensibilities of Islamists worldwide and of an Administration that seems to cater to their continuing criticism of free speech that is critical of Islam? Is Nakoula's disposition the kind of politically-tilted treatment the Framers would have thought should be given bedrock free speech rights? There seems to be strong evidence that his (albeit) legitimate case was processed to appease Islamists and others who opposed his speech on Islam. Certainly, his probation revocation process after arrest and the Judge's ruling were somewhat nontraditional. In most federal cases, the probation officer submits a confidential report to the sentencing judge, "who then can pursue a probation revocation hearing – a mini-trial of sorts – where probation officials must prove the violation. If the judge finds the individual in violation, the court can return the defendant to probation, send him to prison or impose additional terms of probation without prison time. Normal cases can move very quickly – sometimes taking days – once a probation officer has prepared a report…" In this instance, however, the political and diplomatic ramifications resulted in a long delay. Also, the decision by the federal officials to publicize the original arrest of Nakoula and stage a very guilty looking perp walk seems somewhat peculiar. The prosecutors, who should have avoided bringing up the film and the violence in the Muslim world in court for First Amendment reasons, nonetheless did so.

In addition, as noted by journalist Kerry Picket, abnormal staffing decisions were made by the prosecution. The prosecutor was Assistant U.S. Attorney Robert Rugdale, who is second in command of the U.S. Attorney's (USA) Office below U.S. Attorney Andre Birotte. Birotte, of course, is appointed by the President. Ms. Picket found this "curious" since Assistant U.S. Atty. Jennifer Williams, who helped prosecute Mr. Nakoula's bank fraud conviction, would normally have been chosen to deal with this case. And it is even more unusual for Mr. Nakoula's probation violation case, for no explained reason – the USA office refused to comment on this staffing matter – to be kicked up to the number two prosecutor in the office.

A number of prominent legal minds have remarked on the suspicious nature of Mr. Nakoula's probation violation case. Mark Werksman, a defense attorney in Los Angeles and a former federal prosecutor spectacularly claimed that "(t)his case breaks the mold. If the video hadn't gone viral, and caused the Arabic world to blow up, who would care if this guy is using YouTube? It's all about politics with this guy." Law Professor Lawrence Rosenthal was quoted as acknowledging that it is "highly unusual" for a judge to order immediate detention on a probation violation for a nonviolent crime, but then he qualified his statement, continuing that if there were questions about Nakoula's identity it was more likely (but not necessarily "usual").

Jonathan Turley, a law professor who specializes in First Amendment jurisprudence, has said that "(v)iolations of probation conditions are quite common and rarely result in re-incarceration. Probation terms tend to be sweeping and most such violations result in warnings or brief appearances before the court." Turley has also written: "(f)rom my experience as a criminal defense attorney, the violations described in a case of his kind rarely warrant the 24-month term demanded for Nakoula Basseley Nakoula. In addition, the federal authorities insisted on his being jailed as a flight risk, though it is unclear why that is the case and why he could not be given an electronic bracelet." Former federal prosecutor Bill Otis has confirmed that, based on his decades of service, "probation violators routinely get a pass on violations far more serious and suggestive of renewed criminality than making a perfectly legal (and, some would think, First Amendment-protected) video."

And then, there is what may be the "smoking gun" in this case. Charles Woods, the father of one of the four Americans killed in Benghazi, has alleged that Secretary of State Clinton approached him at the Benghazi victim's memorial to promise to bring to justice, not the Islamist terrorists who killed his son, but Mr. Nakoula. As Pseudonymous blogger Allahpundit of Hot Air says, if true:

That's perverse, but in keeping with the fact that she (Clinton) decided to run ads on Pakistani TV apologizing for the film while Islamist cretins menaced American diplomats across the region. Even if you give her the benefit of the doubt and assume that she had no intention of prosecuting the filmmaker but was merely telling Woods something she thought would console him, why on earth would she zero in on the filmmaker as the target of blame instead of the degenerates who actually shot his son?

The answer to this question may be that the Obama Administration is less than fond of free speech that "slanders" Islam. In his now infamous Cairo speech in 2009 Obama told an Egyptian Muslim audience, including the Muslim Brotherhood, on foreign soil that he considers "it part of my responsibility as President of the United States to fight against negative stereotypes of Islam wherever they appear." In the aftermath of the Muslim world's protests to the video, Obama told the UN General Assembly that "(t)he future must not belong to those who slander the prophet of Islam." Nakoula was arrested the following day.

During the past year, of the 10,823 adults under supervision in the federal probation system, only 829 had their probation revoked for technical reasons. Usually the violations that attract the attention of the courts are those that involve violence, drugs, or other serious unwholesome behavior. Nakoula Basseley Nakoula has been sentenced to a year in prison for probation violations that are none of these. His case stinks to high heaven, with its slow process, the prosecution's demand for serious prison time, the very public arrest, the decision by the U.S. Attorney's office to have a senior prosecutor handle the case, and the judge's decision to imprison immediately without any bail. Then, there is the statement by the Secretary of State, whose position, unless I am misremembering my American government classes, does not have jurisdiction over domestic criminal matters. And let's not forget that the government's very public identification and prosecution of Nakoula – done for his speech, and not for his probation violations – has actually endangered his life, and that of his family's, even forcing them to flee their own home.

I would love to believe that this case, and this criminal sentence, is totally focused on Mr. Nakoula's actual probation violations, and has nothing to do with the film he wrote about Muhammed. I would love to believe this, but the surrounding circumstances are just too suspicious.

Adam Turner serves as staff counsel to the Endowment for Middle East Truth (EMET) and the Legal Project at the Middle East Forum. He is a former counsel to the Senate Judiciary Committee where he focused on national security law.